[Cite as State v. Keys,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97353

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ROY KEYS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-549679

BEFORE: Kilbane, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: November 8, 2012 ATTORNEYS FOR APPELLANT

Timothy Young State Public Defender

BY: Stephen A. Goldmeier Assistant State Public Defender 250 East Broad Street Suite 1400 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Carrie Heindrichs Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

{¶2} Defendant-appellant, Roy Keys (“Keys”), appeals the trial court’s denial of

his presentence motion to withdraw his guilty plea. For the reasons that follow, we

affirm.

{¶3} In May 2011, Keys was charged in a three-count indictment. Counts 1 and

2 charged him with kidnapping, and Count 3 charged him with felonious assault. The

charges arose out of an incident in which Keys hit his girlfriend multiple times in the face

while they were driving in her car. The girlfriend attempted to exit her car, but Keys

climbed into the driver’s seat, grabbed her by her jacket, and drove the car with his

girlfriend being dragged along the side of the car.

{¶4} On July 12, 2011, Keys pled guilty to felonious assault as charged in Count

3, and the remaining counts were nolled. The matter was set for sentencing on July 26,

2011. On July 18, 2011, Keys filed a pro se motion to withdraw his guilty plea, alleging

that “I did not understand what was going on in court. I had other voices in my head

telling me to do one thing and I could not choose right from wrong.” As a result of this

motion, the trial court did not proceed with sentencing. Instead, the trial court referred

Keys to the court psychiatric clinic for a mental health evaluation. In the interim, Keys requested new counsel, who represented Keys at the hearing on his presentence motion to

withdraw his guilty plea on August 29, 2011. At this hearing, the trial court noted the

psychological report regarding Keys concluded that Keys’s account of auditory

hallucinations was inconsistent with an account that is typically provided by psychotic

individuals and diagnosed Keys with malingering. The report also concluded that he

had polysubstance dependence and depressive disorder. In light of this report and the

trial court’s review of the guilty plea hearing, the court denied Keys’s motion and then

sentenced Keys to an aggregate of eight years in prison.

{¶5} Keys now appeals, raising the following single assignment of error

for review.

ASSIGNMENT OF ERROR

The trial court erred by denying [Keys’s] presentence motion to withdraw

his guilty plea[.]

{¶6} Keys argues that the trial court erred when it denied his presentence motion

to withdraw his guilty plea. A motion to withdraw a guilty plea is governed by the

standards set forth in Crim.R. 32.1, which provides that

[a] motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.

{¶7} Generally, a presentence motion to withdraw a guilty plea should be freely

and liberally granted. State v. Xie,

,

(1992).

However, a defendant does not have an absolute right to withdraw a plea prior to sentencing, and it is within the sound discretion of the trial court to determine what

circumstances justify granting such a motion.

In ruling on a presentence motion to

withdraw a plea, the court must conduct a hearing and decide whether there is a

reasonable and legitimate basis for withdrawal of the plea.

. The decision to

grant or deny such a motion is within the sound discretion of the trial court.

{¶8} In State v. Peterseim,

,

(8th

Dist. 1980), paragraph three of the syllabus, this court set forth the standard for

determining whether the trial court has abused its discretion in denying a presentence

motion to withdraw a plea:

A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.

{¶9} Keys’s argument does not specifically address the above factors. Rather, he

argues the trial court erred when it denied his presentence motion to withdraw his guilty

plea because he demonstrated that he was confused, and this confusion caused him to be

misled by defense counsel at his guilty plea hearing. We disagree.

{¶10} The trial court, in the instant case, fully complied with the Peterseim

criteria. First, Keys’s initial and subsequent assigned counsel are highly competent.

Second, Keys concedes that he was afforded that full hearing under Crim.R. 11 and that

his plea was knowingly and voluntarily made. Third, the record demonstrates that the trial court gave Keys a complete and impartial hearing on his presentence motion to

withdraw his guilty plea. Fourth, the trial court afforded Keys an impartial hearing on

his motion to withdraw his guilty pleas and gave full and fair consideration to his request

as required by the last Peterseim criteria.

{¶11} A review of the record reveals that the trial court was prepared to sentence

Keys on July 26, 2001, but continued the matter for a mental health evaluation. After

the evaluation was completed, the trial court held a hearing on Keys’s presentence motion

to withdraw his guilty plea. At this hearing, the court first noted that the psychiatric

report concluded that Keys’s account of auditory hallucinations was inconsistent with an

account that is typically provided by psychotic individuals. The trial court then noted

that at the plea hearing defense counsel informed the court that he fully advised Keys, and

Keys understood the nature of the proceedings. The court stated:

I inquired of [Keys] directly, and if my math is correct, on 13 separate occasions, I asked him if he understood exactly what I was explaining to him. On two separate occasions I asked him if he had any questions whatsoever. On a number of occasions I asked him about his satisfaction with his counsel. He indicated that he was satisfied. He indicated no threats of promises had been made to induce this plea, and that the plea that he entered [into] * * * was completely voluntarily and knowingly made.

* * * [O]n the date of the plea, * * * I asked you if you were taking any

medication. You indicated that you were taking blood pressure medication

and you were not sure if it was helping your blood pressure. I asked you if

you were thinking clearly. You said yes. I asked you if you were feeling well, and you said yes. I asked you if you were under the influence of any

illegal drugs or alcohol, and you said no.

{¶12} The record demonstrates that Keys did not suffer from auditory

hallucinations, and the trial court asked him on a number occasions if he understood the

nature of the proceedings and if he was satisfied with defense counsel. Therefore, we

find that the trial court did not abuse its discretion when it denied Keys’s presentence

motion to withdraw his guilty plea because all four prongs set forth in Peterseim were

satisfied.

{¶13} The sole assignment of error is overruled.

{¶14} Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________ MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR